Personal Injury Insurance Settlements:

Negotiating a Pre-Trial Settlement

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THURSDAY, AUGUST 29, 2013

Presenting a live 90-minute webinar with interactive Q&A

James Fasig, Eubanks Barrett Fasig & Brooks, Tallahassee, Fla

Marius J. Ged, Partner, Ellis Ged & Bodden, Boca Raton, Fla.

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PRE NEGOTIATION

STRATEGIES

NEGOTIATE FROM A

POSITION OF STRENGTH

James Fasig Eubanks, Barrett, Fasig & Brooks

3360 Capital Cir. NE, Ste. B Tallahassee, FL 32308

850-224-3310 Jimmy@tallahasseepersonalinjury.com

Strength

The advantage of Choice/Timing/Preparation

Know the strengths of your case

Know the weaknesses in your case

Nail down strengths

Strengthen the weaknesses

Expert Opinions

Scientific Research

Exhibits

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Don’t Follow Tradition!

Wait for client to finish treatment

Order records, bills, and impairment

rating

Send settlement demand

Hope insurance carrier is nice

File lawsuit if the insurance carrier is

not nice

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Timing is Everything

Quick Demands Work

Demand/Litigation

How do you get the most money

out of a case?

Set the Case for Trial and be

ready to try the case!

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Quick Demands

Decide whether your client would benefit from

a policy limits settlement

Offer to settle for the policy limit

Discuss the client’s symptoms and potential

worst outcomes

Include HIPPA compliant medical

authorizations

File the complaint/serve upon Defendant

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Quick Demand Language

Enclosed is a copy of the complaint we have

filed against your insured, which is in the

process of being served upon your insured.

You will have twenty days from the date of

service to file an answer to the complaint or

tender your policy limit. With this letter, we are

agreeing to extend the time period for an

additional ten days, which will give you thirty

days from the date of service.

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More Language

If you tender your policy limits within thirty

days from the date of service, we will dismiss

the lawsuit against your insured by filing a

motion to dismiss with prejudice. If you decide

not to pay the policy limit, your insured will be

at risk for a potential excess judgment, and

may ultimately have to pay money out of

his/her own pocket. If you decide to put your

insured at risk, we encourage you to advise

him/her to seek independent counsel.

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Full Demand

When the case has major problems/high policy

limit

Include all medical records, including pricrs

Include all medical bills,

Include all subrogation ledgers and PIP logs

Deal with all major problems

Expert opinions

Research

Witness Statements

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Always Negotiate

From a Position of Strength

Do your homework before you file

Witness statements

Expert opinions

Photographs

Case law research

Set the case for trial as soon as you receive an

answer

Keep the defense attorney on the defensive!

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Mediation

The best settlements come at or after

mediation!

Some mediators are like magicians

Adjusters are committed to

spending the time it takes to resolve

the case

The closer the mediation to the trial

date, the more likely you are to get

a big settlement 14

Don’t Be Afraid

The most important factor in negotiating the

best settlement:

Don’t be afraid

to try the case!

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Everyday we will positively impact our clients’ lives through outstanding

legal representation, relentless passion and flawless teamwork.

Marius J. Ged, Esq

mged@ellisandged.com

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METHODS OF INCREASING SETTLEMENT AMOUNTS

Establishing Case Value

Negotiating with the Adjuster

Establishing Relationship with the Adjuster

Continuing Negotiations

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Establishing Case Value Cont.

Coverage/Carrier

Liability

Injuries and Resulting Treatment

Force of Impact/Damages

Emergency Room/Rescue

Immediate Complaints of Injury

History of Prior Accidents/Injuries

Photos of Client (if they look good)

Our Doctor’s Credentials (board certifications)

If They Use Our Doctor for IME

Changes in Client’s Life, Lost Wages, Lost Employment

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Establishing Case Value

Background of Client

Out of Pocket Medical Expenses

Favorable Witness Statements

Their IME’s Report if Favorable to our Case

Other Factors

•DUI

•Gross Negligence

•Negligent Entrustment

•Dangerous Instrumentality Doctrine

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Negotiating with the Adjuster

Steps to the first phone call:

1. Review file for high points of client’s injuries

2. Determine approximate case value and client’s expectations

Receive initial offer from the adjuster.

Realize that the adjuster has a specific rage within which to work, based on severity of

injuries and other factors.

“Give them enough rope…” Obtain adjustor’s reasoning for the current offer.

Sometimes the adjuster will give you what you need. The client may be coming up on an

ISO report, there may be priors about which you were not aware, or the ISO report may

be inaccurate and proving that, can make your case.

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Establishing Relationship with the Adjuster

“Keep your friends close, keep your adjuster closer”… Whenever possible, in

conversation note name of spouse, children, vacations, hobbies, etc. so you can use it in

follow up conversations.

You get more flies with honey than with vinegar and an adjuster that finds you likeable

may give you that last $500.00 or $1,000.00 that you need to get the case to settle.

When a case is a dog and you have nothing else to go on, your relationship with an

adjuster might make all the difference in whether you can get an offer to settle the case.

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Continuing Negotiations

The Client:

After the initial offer, a good practice is to call the client, introduce yourself as negotiator,

and determine their expectations of the case.

Investigate and Respond:

Always review the file after receiving the first offer to see if there is anything we missed

that can be offered as a counter to the adjuster’s claims. Answer each of the adjuster’s

claims regarding weaknesses of a case on an individual basis.

Medical Chronology:

In cases with complicated medical histories, prepare a detailed chronology of prior

injuries/treatment, diagnostic results and a comparison to the injuries/treatment/diagnostic

studies attributed to your loss. Where the case value merits, have our client’s treating

physician review prior and post diagnostic films and compose a comparison report.

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Continuing Negotiations

In UM Cases, Bad Faith Letter:

When the policy limits have been requested and they are low relative to the severity of the

injury and the insurance companies offer is unreasonable, an initial demand letter can be

followed up with a bad faith letter or it may be threatened to illicit the full policy limits.

Insurance Companies are leery of receiving an excess judgment.

Frame the case as a WIN WIN situation. Point out to the adjuster the advantage of

resolving the case pre-litigation rather than taking a chance with a jury. Emphasize those

aspects of the case that would be most likely to result in a favorable jury verdict (inflame

the jury).

Good Cop, Bad Cop:

Emphasize to the adjuster that you are trying to resolve this case for them and for you but

that the BAD attorney/client is pushing you to file a lawsuit and questioning your

ability/determination. You need to settle the case but you don’t want to look bad.

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Continuing Negotiations

Speak Softly and Carry a Big Stick:

Yelling at an adjuster hardly ever results in an increase in a settlement offer. If the

adjuster fails to offer reasonable value and/or the client refuses to accept the offered

settlement, threatening that we may proceed with a lawsuit is always the strongest arrow

in your quiver.

Unless you have nothing and the adjuster knows you have nothing, calmly and coldly

describing the worst case scenario of a plaintiff verdict at trial to an insurance adjuster can

often cause them to rethink the case value and place more money on the file.

Advising the adjuster that their offer is unacceptable and that you will discuss this case

with the client to deem if a lawsuit is appropriate; may result in an additional offer.

Research and submit similar jury verdicts if substantially higher and even better if from

an attorney with the firm.

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Continuing Negotiations

“I feel your pain.” Commiserate:

Let the adjuster know that you are just as interested in settling the case as they are. Offer

a small reduction from our last position as a gesture to expedite the settlement.

i.e. the insurance company offers $7,000.00, we tell them the client wants

$15,000.00 but that we will convince them to accept $12,000 if they will

settle today.

Use Time as a Tool:

As an aside to commiserating with the adjuster, the adjuster is usually in a hurry to settle

each case. The adjuster receives new cases every day and needs to settle cases to reduce

workload.

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Continuing Negotiations

Cutting out the middle man, or “are you sure your adjuster is doing what’s in the

best interest of your company?”

If negotiations have been ongoing and we are looking for that last $500 or $1,000,

threatening to speak to the supervisor or asking to speak to the supervisor may be the final

impetuous that we need.

Adjustors rarely want to involve their supervisors and supervisors rarely wish to become

involved. On the other hand, if there offer really is low, relative to the severity of the

injury, it is possible that the overworked adjuster has overlooked something and is too

stubborn to go back and look again.

Speaking to the supervisor in a “last attempt to avoid litigation” will sometimes result in a

substantially higher offer. Frame the issue as you trying to do them a favor and save them

a lot of time and expensive litigation.

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CORPORATE HEADQUARTERS 7171 N. Federal Highway

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Phone: (561) 995-1966

www.ellisandged.com

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